共同侵权之“共同”标准:反思与重构

The Standard of "Joint"for Joint Torts:Examination and Reconstruction

我国《侵权责任法》以意思联络作为确定共同侵权的"共同"标准。该法选择的进路并无充分的价值依据且悖于侵权法的发展方向。其他现有的替代标准未能弥补该缺陷。妥当的进路是附条件的损害共同说。在受害人无辜的场合,只要数人致同一或不可分的损害,各加害人均应负连带责任。在受害人具有过错的场合,只要某加害人责任份额比受害人责任份额大,该加害人即应负连带责任。过错程度和风险比例规则是确定当事人责任份额的妥当标准。

The Tort Liability Act in our country takes communication as the standard of ＂joint＂ for joint torffeasorship. The act based on no solid ground and goes against the modern development of tort law. Other alternative standards can not redeem the act. The most proper standard is the conditional joint of the indivisible damage ~ For the victim without fauh, so long as the damage is one or indivisible, each tortfeasor is ascribed to joint and several liability. If the victim is at fault, aside from the requirement of one or indivisible damage, as long as the proportion of liability is lower than a certain tortfeasor＇ s, the very tortfeasor should be ascribed to joint and several liability. The degree of the fault and the risk proportion rule are the appropriate standard for determing the liability share of the parties.